(The information on this site applies to Florida only)

Disclaimer: What follows are reports of some of the significant medical malpractice cases ruled on by Florida's appellate courts and supreme court for approximately the past year. These reports include only our brief synopsis about the legal significance of these cases, and you should always obtain and read the entire case opinion to see what else is in the opinion. You should not attempt formal legal research on our site because we do not have full case databases nor are we able to keep our reports current on a day-to-day basis. It should be remembered that all cases are fact specific, and even a slight change in the facts could change the outcome of these cases. 

For purposes of the two-year statute of limitations, plaintiff was held not to have constructive knowledge of results of a positive HIV test placed in his medical record, at least when there existed a statute placing an affirmative duty on the health care provider to counsel patients about positive HIV tests. John Doe v. Hillsborough Hospital Authority, __ So.2d __, 27 FLW D1215b ( Fla. 2nd DCA 5-22-02 ). Plaintiff entered the hospital in 1993 for treatment for a drug overdose. While hospitalized, he received a positive HIV screening test, the results of which were placed in his hospital chart. He alleges he was never informed about the results, and he first discovered the test results in the chart in 1998 after he was diagnosed with advanced AIDS. His suit was based on the negligent delay in diagnosis, which prevented him from taking appropriate drugs to slow the onset of AIDS. He filed his suit after the four-year statute of repose had run measured from the date of the incident, but before the seven year statute of repose had expired, which would apply if there had been fraud, concealment, or misrepresentation. Relying on language from Nardone v. Reynolds, 333 So.2d 25, (Fla. 1976), the trial court ruled that the two-year statute of limitations had expired before suit was filed because plaintiff was on constructive notice of the contents of his medical records back in 1993 as soon as the positive HIV test result was placed in his hospital chart. The 2nd District reversed, noting that F.S. 381.004(3) creates a specific statutory obligation on health care providers to notify a patient of a positive HIV test. The Court stated that, at least where there is such an affirmative duty to inform, the patient would not be deemed to have constructive notice of the test results placed in his records. The case was then remanded with instructions to the trial court to determine whether there had been sufficient fraud, concealment, or misrepresentation to extend the four-year statute of repose to seven years. The Court specifically noted there appears to be a conflict between Hernandez v. Amisub, 714 So.2d 539, (Fla. 3rd DCA 1968), which states that negligent concealment can be enough to extend the statute of repose, and Myklejord v. Morris, 766 So.2d 1160, (Fla. 5th DCA 2000), which held that the word "concealment" requires some intent to conceal or some other active element. 

Unless four corners of complaint affirmatively show that statute of limitations has run it is error to grant a motion to dismiss complaint on statute of limitations grounds. Woods v. Sapolsky, 27 FLW D1611d ( Fla. 1st DCA 7-9-02 ). In this misdiagnosis case, Plaintiff’s complaint had alleged the date on which the defendant committed medical malpractice, and the trial court evidently granted the motion to dismiss based on the argument that the complaint was filed more than two years after the alleged negligence. In reversing, the appellate court pointed out that there was nothing in the complaint that established when the plaintiff learned of the correct diagnosis or had the requisite knowledge to start the two-year clock ticking.

Disputed questions of fact prevent summary judgment for defendant on statute of limitations grounds. Overholt v. Neto, ___ So.2d ___, 27 FLW D1819(b) ( Fla. 2d DCA 8-9-2002 ). Plaintiff had emergency surgery for appendicitis during which a portion of his small bowel was resected. Over three years later he was diagnosed with shortened bowel syndrome due to the resection and he then filed suit against his surgeon for unnecessarily removing too much of his bowel. Plaintiff testified he did not know until the diagnosis of short bowel syndrome was made that his first surgeon had removed any of his bowel during the appendectomy surgery. The defendant physician had testified that, while he could not specifically remember the conversation, based on his normal and customary practice he would have explained the bowel resection to his patient. The trial court granted defendant’s motion for summary judgment on the expiration of the two-year statute of limitations, finding specifically that the plaintiff had been told about the resection earlier, and finding also that the plaintiff was charged with constructive knowledge of the contents of his medical records, which mentioned the bowel resection in the operative report. The appellate court reversed the summary judgment and held that a question of fact was presented as to when the Plaintiff knew or should have known. The Second District Court pointed out that the trial court was not permitted to weigh the disputed testimony about whether the patient had been told about the resection. The court also said that patients are not normally charged with constructive knowledge of the contents of their medical records unless the peculiar facts of the case are sufficient to warrant holding the patient to that standard. Quoting from its own recent holding in Doe v. Hillsborough County Hospital Authority, 816 So.2d 262, ( Fla. 2d DCA 2002) the Second District said in those “…cases applying the constructive notice rule, some physical injury or medical condition or event had placed the plaintiff in a posture where the plaintiff could reasonably have been expected to consider the need to examine medical records.” No such circumstances were presented here. Comment: While the appellate court’s legal reasoning was sound and the outcome was correct, all of the focus on whether the patient knew or should have known that a piece of his small bowel had been removed previously seems to slightly miss the mark. It should not matter whether the patient was aware that a piece of his bowel was removed in the earlier surgery. The facts set out in the opinion show that the plaintiff’s ongoing symptoms following the appendicitis/bowel resection surgery were attributed by his treating physicians to his pre-existing Crohn’s disease. He did not know anything different until a new physician told him three years later that he had something called short bowel syndrome and that was the real cause of his ongoing symptoms. It was only then that he became aware of an injury that might possibly be due to what his surgeon did. That is no different than having abdominal surgery and the patient first learning 3 years later that the cause of continuing abdominal symptoms is that a sponge was left behind. Most would agree it would hardly be relevant to argue over whether the patient ever knew that sponges were used in his prior surgery. The only real focus should be on when he knew (or should have known) he was injured by one. 

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